United States District Court, D. Arizona
V. WAKE UNITED STATES DISTRICT JUDGE.
the Court is EZconn Corporation's Rule 12(f) Motion to
Strike Insufficient Defenses and Redundant, Immaterial, and
Impertinent Matter (Doc. 91).
12(f) of the Federal Rules of Civil Procedure permits the
striking from a pleading of "an insufficient defense or
any redundant, immaterial, impertinent, or scandalous
matter." A motion under Rule 12(f) seeks to avoid the
expenditure of time and money arising from litigating
spurious issues by dispensing with them before trial.
Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th
Cir. 1993), rev'd on other grounds, 510 U.S.
517, 114 S.Ct. 1023 (1994); Whittlestone, Inc. v.
Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). An
affirmative defense is sufficiently pled if it gives
plaintiff fair notice of the defense. Wyshak v. City
Nat'l Bank, 607 F.2d 824, 827 (9th. Cir.
1979); Simmons v. Navajo Cty., Ariz., 609 F.3d 1011,
1023 (9th Cir. 2010).
Corporation's Complaint against PCT International, Inc.,
consists of 38 paragraphs and alleges one claim for breach of
contract. (Doc. 1, CV-16-00508.) It alleges that over the
course of 18 months in 2012 and 2013, PCT International
ordered and received more than $6.6 million worth of product
from EZconn that PCT International did not pay for. The
Complaint identifies 146 invoices by number and shipped date,
which allegedly remain outstanding and unpaid, and PCT
International admits that, "to the best of its
knowledge, the invoices listed correspond to products that
EZconn manufactured for, and supplied to, PCT." EZconn
seeks an award in the amount of the unpaid invoices, pre- and
post-judgment interest, attorneys' fees, expenses, and
Answer and Affirmative Defenses responds to the 24 paragraphs
of EZconn's Complaint, alleges 67 paragraphs of
"Facts Pertaining to Affirmative Defenses, "
summarily identifies five affirmative defenses, and states
that PCT International "reserves all rights to assert
additional affirmative defenses." (Doc. 83.) It does not
identify which of the 67 paragraphs of factual allegations,
if any, support each of the five affirmative defenses.
moves to strike each of PCT International's five
affirmative defenses, its reservation of rights to assert
additional affirmative defenses, and each of the 67
paragraphs of PCT International's "Facts Pertaining
to Affirmative Defenses."
International's 67 paragraphs of "Facts Pertaining
to Affirmative Defenses" and conclusory identification
of affirmative defenses do not provide EZconn with fair
notice of PCT International's defenses. Responsibility
for supporting each affirmative defense with factual
allegations belongs to PCT International, not EZconn or the
Court. PCT International cannot expect others to guess which
of 67 paragraphs of allegations may support any affirmative
defense. On that basis alone, all of PCT International's
affirmative defenses and factual allegations would be
stricken with leave to amend. However, as set forth below,
each of the affirmative defenses is insufficient or redundant
and is not subject to cure by amendment.
the heading "First Affirmative Defense (Set Off), "
PCT International alleges, "Any claim by EZconn for
damages is limited and/or barred, in whole or in part,
because those damages are subject to set off." (Doc. 83
at 21.) "A counterclaim or setoff is a cause of action
in favor of the defendant on which he might have brought a
separate action against the plaintiff and recovered a
judgment. . . . If one is not entitled to relief in a direct
action, one is not entitled to assert a setoff or
counterclaim." W. J. Kroeger Co. v. Travelers Indem.
Co., 112 Ariz. 285, 287, 541 P.2d 385, 387 (1975).
International contends that its set-off defense is based on
the causes of action it pled against EZconn in its Complaint
(Doc. 1, CV-15-01810) and Proposed Amended Complaint (Doc.
72, CV-15-00600). Because PCT International's claims were
the subject of a pending action when EZconn commenced this
action to recover payment for the 146 invoices, PCT
International is not required to plead a counterclaim against
EZconn for the same causes of action. Fed.R.Civ.P. 13(a). Nor
is it required to plead them again as an affirmative defense.
At most, the set-off duplicates ...